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Phillips v. McGrath


August 24, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge



Petitioner Regonald D. Phillips, a State prisoner incarcerated at Pelican Bay State Prison, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the execution of his sentence. In an Order dated November 22, 2004, the Court construed Petitioner's claim as one "that State prison officials have computed the time credits to which he is entitled improperly, resulting in the miscalculation of his release date and him being held beyond the expiration of his sentence." The Court found Petitioner had alleged exhaustion of State remedies, and directed Respondent to show cause why relief should not be granted. Respondent has filed a motion to dismiss the petition on the grounds that (1) Petitioner has failed to exhaust his State remedies; (2) the petition is barred by the statute of limitations; and (3) the petition fails to allege sufficient facts to state a claim upon which relief may be granted. Petitioner has filed an opposition to the motion to dismiss. Respondent has not filed a reply. For the reasons discussed below, the motion to dismiss is DENIED.


The following factual and procedural background is based on the allegations in the petition, Respondent's motion to dismiss and Petitioner's opposition, and the exhibits attached to the pleadings.

Petitioner was convicted of robbery and false imprisonment and on July 27, 1991, he was sentenced to twenty years and four months in State prison. On appeal the convictions were affirmed but the abstract of judgment was corrected to reflect a sentence of seventeen years and eight months. In the present petition Petitioner does not challenge the validity of his conviction. Rather, he challenges the execution of his sentence, alleging that prison officials have miscalculated his release date and that he is being held beyond the expiration of his sentence.

The facts underlying this claim are not ascertained easily from the petition or attached exhibits. However, a number of the exhibits do pertain to a loss of credits suffered from April 8, 1992 to October 9, 1995, when Petitioner was housed in the Security Housing Unit (SHU) at High Desert State Prison. Before he entered the SHU, his earliest possible release date (EPRD) from prison was in 2002. After his release from the SHU, however, his EPRD was in 2004. When Petitioner challenged the recalculation, prison officials explained that while in the SHU he was in D-2, or "zero earning," status. Thus, he earned only 118 days of credits, rather than the approximately 915 days of credits he could have earned had he not been in the SHU during that more than three year period. Because the earlier pre-SHU calculation of his EPRD took into consideration the projected credit earnings that he could have earned had he not entered the SHU, Petitioner "lost" approximately 797 days off of his pre-SHU release date calculation, bringing his EPRD to 2004. Petitioner was told further that credits lost based upon a SHU term cannot be restored. Petitioner pursued this claim through the final level of appeal, where it was denied on May 17, 1996.

Petitioner then pursued an appeal alleging the miscalculation of his EPRD and seeking a hearing to recalculate it. On February 21, 1997, at the Director's Level of Review, Petitioner was granted a Computation Review Hearing. Subsequent appeal records indicate that Petitioner's file was audited on April 9, 1997, and December 8, 1997, and due to the discovery of erroneous credit calculations his EPRD was adjusted. The Computation Review Hearing took place on January 13, 1998, and Petitioner's revised EPRD of May 11, 2002, was found to be correct. However, Petitioner maintained this calculation was incorrect and appealed the decision, eventually filing a State habeas petition in Sacramento Superior Court on May 27, 1999. The State court's ruling on the petition is not noted in the present petition.

Thereafter, Petitioner continued to file appeals. In an informal level decision dated February 4, 2002, the reviewing officer noted that Petitioner "recently had 316 days restored," and that certain disciplinary charges had been dismissed. Petitioner was told his EPRD at that point was December 2, 2005.

According to a Director's Level Appeal Decision dated June 27, 2002, Petitioner received another Computation Review Hearing on March 15, 2002, where it was determined that his release date calculation was correct, and that the administrative remedies available to Petitioner within the CDC had been exhausted.

Petitioner then pursued State habeas corpus relief. A review of the petitions shows almost identical allegations to those in the present petition, including assertions that over a period of almost twelve years Petitioner had worked for twenty-eight months but did not receive adequate credits for that period, that SHU placements in 1996 and 2001 resulted in erroneous credit loss, and that over time he has lost more than 1,500 credits which should have been restored. On March 5, 2003, the California Court of Appeal denied his petition summarily without citation, and on January 22, 2004, the California Supreme Court denied his petition summarily, citing In re Swain, 34 Cal.2d 300, 304 (1949), and In re Clark, 5 Cal. 4th 750 (1993).


Respondent argues that the petition must be dismissed because it is unexhausted. It is not clear from the face of the petition that this is so, however. Although Respondent cites statements made by Petitioner in which Petitioner allegedly concedes nonexhaustion, the allegations and exhibits summarized above show that Petitioner's claims have been reviewed at the Director's Level of Review and also were presented to, and denied by, the California Supreme Court. The Court is unable to say at this time that the claims are unexhausted. Accordingly, the motion to dismiss on this ground is denied.

Respondent also argues that the petition is time-barred under the one-year statute of limitations for federal habeas corpus petitions. Respondent's reasoning is based on the fact that Petitioner's challenge to the miscalculation of credits following his first SHU term was denied at the Director's Level of Review in 1996; therefore, Respondent argues that Petitioner was required to file his federal habeas corpus petition within one year of that denial under 28 U.S.C. § 2254(d)(1)(D). However, a review of the petition shows that Petitioner's challenge to the execution of his sentence is not limited to one instance of alleged miscalculation of credits. His clear and consistent complaint is that his credits have not been assessed correctly for a number of years, and he has raised these claims in several administrative appeals and State habeas corpus petitions, including the one denied on January 22, 2004, by the California Supreme Court. Respondent has not established that the petition is untimely. Accordingly, the motion to dismiss on this ground is denied.

Finally, Respondent argues that Petitioner's allegations are so conclusory and incomprehensible that they fail to state a cognizable claim for relief. The Court disagrees with this characterization of the petition.

A State prisoner whose time credits have been improperly computed may have a claim for denial of due process, see Haygood v. Younger, 769 F.2d 1350, 1355-58 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986), which generally may only be remedied by way of a petition for a writ of habeas corpus, see Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991); accord Toussaint v. McCarthy, 801 F.2d 1080, 1096 n.14 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

A California inmate's earliest and maximum release dates are calculated when he enters prison. The maximum adjusted release date (MARD) generally is determined by figuring the starting date in the CDC prison system plus the total prison term imposed minus any pre-prison credits. The MARD apparently remains the same throughout the inmate's incarceration as long as he is not convicted of additional crimes resulting in additional sentences. The EPRD and current release date (CRD) are adjusted throughout the inmate's stay in prison when various events occur, e.g., when he moves from one credit earning level to another, when he loses credits due to a disciplinary decision, and when lost credits are restored. The issue in this habeas petition is whether Petitioner's EPRD has been calculated correctly throughout the period of his incarceration.

As is clear from the exhibits attached to the petition, CDC correctional case records analysts have reviewed Petitioner's credit earning history and recalculated the credits for Petitioner a number of times, explaining how the credits and EPRDs were calculated and recalculated for Petitioner based on the different events that occurred during Petitioner's incarceration, e.g., disciplinary charges resulting in credit forfeitures, changes in placement where the amount of credits that could be earned changed, and restoration of credits already forfeited. Although Petitioner complains in general about credit miscalculations, he has made specific complaints as well which have prompted the CDC to review and recalculate his credits on a number of occasions. While Respondent is not required to speculate about the exact nature of the miscalculations Petitioner is challenging, the petition is not as unclear as Respondent asserts. The Court finds that Petitioner states cognizable claims for relief based on:

(1) his allegations that he did not receive accurate credits for a twenty-eight month period during which he worked and during his periods of SHU confinement from 1992-1995, in 1996 and in 2001; (2) the facts addressed by the Director's Level Review decisions issued on May 15, 1996, February 21, 1997, and June 27, 2002; and (3) the Computation Review Hearings of January 13, 1998, and March 15, 2002, and any subsequent related administrative appeals and State habeas petitions. Accordingly, the motion to dismiss for failure to state a cognizable claim for relief is denied. Respondent shall respond to the claims as set forth below.

Because the calculation of time credits is a complex matter, the Court would appreciate Respondent's assistance in providing a clear and concise summary of the relevant facts and calculations for all concerned.


For the foregoing reasons and for good cause shown,

1. The Motion to Dismiss is DENIED. (Docket no. 7.)

2. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the Answer a copy of all records that are relevant to a determination of the issues presented by the petition.

If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision thirty days after the date Petitioner is served with Respondent's Answer.

3. Respondent may file a renewed motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within thirty (30) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition.

4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion.

5. Petitioner is reminded that all communications with the Court must be served on Respondent by mailing a true copy of the document to Respondent's counsel.

6. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.



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